Editors’ Blog

I wanted to follow up on Nicole Lafond’s post from yesterday afternoon. Subject to signature verification, a broad right to abortion and reproductive rights in the form of a state constitutional amendment will now appear on the ballot in Michigan in the November election. It seems very likely the referendum will win and essentially end the abortion issue in the state of Michigan going forward, excluding the possibility of a national abortion ban or Court ruling that might conceivably override the state constitution. One recent poll shows that 58% of Michigan residents oppose the Dobbs decision and 52% strongly oppose it. Only 34% support it.

Getting outraged over Fox News holds little allure these days, but occasionally the network will do something so quintessentially Fox News that you have to sit back and marvel at the layers of mendacity.

Today’s little Fox News gem was a segment on what a huge bummer it is to visit Thomas Jefferson’s Monticello these days, what with all the focus on slavery and what not at what was built as a slave plantation.

A bow-tied, bespectacled guest for the segment was billed hilariously in one chyron as a “recent Monticello visitor.” Turns out there’s a little more to the story.

A group of pro-abortion activists in Michigan have succeeded in collecting close to double the signatures necessary to get a question on the ballot this fall that, if approved by voters, would codify abortion rights into the state constitution.

Late last week as we were discussing Roe, the corruption of the Court and various avenues to constrain that corruption, I got a series of emails from TPM Reader lawyers experiencing what amounts to a crisis of faith in the assumptions of their profession. They were remarkably similar. It was clear the debate had struck a very particular nerve.

So, for instance, TPM Reader SB wrote saying he entirely agrees with the need to codify Roe and if necessary take further steps to constrain the Court if they then strike down such a codification. But then he added this.

So yesterday morning we got into contact with three Senate offices trying to see where everyone was on Roe and Reform. We contacted the offices of Sens. Feinstein, Casey and King. (We also reached out to Sens. Tester and Coons. But in those cases it wasn’t clear we got through the forest of out of office emails and voice mail messages. Congress is currently on recess.) Yesterday afternoon Sen. Feinstein’s office released a statement affirming that she’s ready to suspend the filibuster rules for the Roe bill. Around the same time, Sen. Casey’s office confirmed to Kate Riga that Casey also supported suspending the filibuster rules for a Roe bill. And that leaves us with … hmm? Who’s left? Oh right! Sen. Angus King of Maine, an independent who caucuses with the Democrats. So far no response or clarification on this issue. Crickets.

(We also had a conversation with Sen. Kaine, which we’ll get to in a later post.)

A new episode of The Josh Marshall Podcast is live! This week, Josh and Kate wrap up the end of a head-spinning Supreme Court term.

You can listen to the new episode of The Josh Marshall Podcast here.

This covers some ground we’ve discussed already. But I wanted to come at it from a slightly different angle. The following is a note from a law professor TPM Reader whose initials I’m omitting because it’s a small world. I’ll call them LP …

Codifying Roe is not so easy. Congress has only the legislative power explicitly provided in the constitution. In the ACA case, the Court (per CJ Roberts) decided that “health care and insurance” was outside the domain of the commerce clause. And perhaps that’s a good thing, because it’s something of a safeguard against a national anti-abortion law. So what about the enabling clauses of the 14th Amendment (sec 5) and the 13th Amendment (sec. 2). The Court has cut back Congress’ power to use sec 5 to “expand” rights. So you’ve made a point of pushing Biden on “give me 2 more Senators and we’ll run over the filibuster to codify Roe,” I think TPM should do some reporting on what “codifying” would mean and whether it’s practicable with this Court, without something like the ERA. And so maybe you ought to be pushing Biden on “give me 2 more Senators and we’ll enlarge the Court.”

Colorado Gov. Jared Polis — a Democrat up for reelection — signed an executive order this week that will, essentially, protect Colorado from having to cooperate with other states’ investigations into people seeking or providing abortions.

That was quick. Yesterday, Sen. Feinstein’s staff refused to commit to changing the filibuster rules to pass a Roe law in response to questions from The San Francisco Chronicle. TPM’s Kate Riga followed up with her office earlier today and Feinstein has now changed her position. This afternoon she released a statement committing to suspending the filibuster rules to pass a Roe law.

It looks like there may be only one senator standing between voters and passing a Roe law in January 2023. And it’s of all people the senator from California: Dianne Feinstein! We mentioned this yesterday after a staffer in Feinstein’s office told TPM Reader RM that the senator could only commit “to discuss filibuster reform” to allow an up or down vote on the Roe bill in January 2023. Now Joe Garofoli of The San Francisco Chronicle got a more definitive not-at-all-definitive statement from Feinstein’s spokesperson Adam Russell.